Decision in T 279/05 - Predicting availability/ITA
Case number:
T 279/05
Headword:
Predicting availability/ITA Summary of Facts and Submissions:
- The application originates from a PCT application for which a
search report was drawn up in the US. On entry into the European
phase, the EPO issued a declaration of no search under Rule 45 EPC.
- This appeal is against the decision of the examining division to
refuse the application on the grounds that claim 1 of the main
request contained added subject-matter (Article 123(2) EPC),
claim 1 of the first and third auxiliary requests was considered to
be an abstract scheme (Article 52(2) and (3) EPC), and claim 1 of
the second and fourth requests did not involve an inventive step
(Article 56 EPC).
- In the grounds of appeal, the appellant requested that the decision
be set aside and that a patent be granted on the basis of the
refused claims and submitted a fifth auxiliary request.
- In the communication accompanying the summons to oral proceedings,
the Board summarised the issues to be discussed and expressed some
doubts about the patentability and inventive step of the requests.
In response, the appellant filed sixth to eighth auxiliary
requests.
- At the oral proceedings, the appellant requested that the decision
under appeal be set aside and that the case be remitted for further
prosecution on the basis of the claims according to the main
request or, alternatively, according to one of the auxiliary
requests 1 to 6 all submitted during the oral proceedings. At the
end of the oral proceedings, the Chairman announced the decision.
- Claim 1 of the main request reads as follows:
A method for automatically providing availability information
for a seat on a mode of transportation, comprising the steps
of:
- submitting queries from a travel planning system server
(12) to an availability system (66) remotely located over
a computer network that includes a yield management
management algorithm and a seat availability algorithm,
receiving availability responses therefrom and storing said
availability responses in a database (70) of prior queries
local to said server;
- receiving, by the server, a query (48) for seat
availability information, the query including one or more
fields that specify at least one of: points of travel,
dates of travel, times of travel, class of travel, or
booking code;
- determining whether the query can be responded to based on
information in the local database (70) and,
(i) if so, producing a prediction of availability of a seat
based on information from the database (70) in accordance
with the availability query; and
(ii) if not, submitting a query to the availability system
over the computer network in accordance with the
availability query.</p>
System claim 19 corresponds to method claim 1.
The independent claims of the auxiliary requests contain further
details of the availability prediction.
- submitting queries from a travel planning system server
- The appellant argued essentially as follows:
The invention solved the problem of relieving processing load on
the availability system caused by the large number of searches that
are necessary to find low-fare flights. This was solved essentially
by providing a travel planning system server that stored previous
flight availability searches in a database and used this data to
predict future searches.
The invention recognised that it was not necessary to have 100%
confidence in an availability search since the validity of the
search would be tested when a ticket was finally booked. Customers
would tolerate some percentages of wrong searches provided that it
was not too high. Thus, all that was needed was a reliable
prediction of the availability using previous data and this
eliminated the need for many actual searches.
This was not obvious to the skilled person who was a computer
engineer knowing nothing about availability searches.
Prediction in the sense of the invention was not the same as
“caching” as asserted by the examining division. A cache always
produced correct data, whereas in the invention the idea was to
produce a prediction that did not always need to be correct.
There was no evidence on file for how the skilled person would
solve the problem of reducing the load on the availability system
so that it could not be considered obvious.
Reasons for the Decision:
1. The application relates to determining airline seat availability.
As
explained by the appellant (see point VII, above), the invention
solves
the problem of relieving processing load on the availability system
caused by the large number of low-fare flight searches. It achieves
this
by providing a travel planning system server that stores previous
flight
availability search results in a database and uses this data to
predict
results of subsequent searches.
2. The invention involves a mixture of technical aspects, e.g.
servers
and databases, and not technical aspects, e.g. airline seat
availability
and yield management. Decision [node:49,title=“T 641/00 – Two
identities/COMVIK”] (OJ EPO 2003, 352) sets out the approach to
judge
inventive step in such cases:
> This approach requires identification of the technical field of
the
invention (which will also be the field of expertise of the person
skilled in the art to be considered for the purpose of assessing
inventive step), the identification of the closest prior art in this
field, the identification of the technical problem which can be
regarded as solved in relation to this closest prior art, and then an
assessment of whether or not the technical feature(s) which alone or
together form the solution claimed, could be derived as a whole by
the
skilled person in that field in an obvious manner from the state of
the art.
> For the purpose of the problem-and-solution approach, the
problem must
be a technical problem, it must actually be solved by the solution
claimed, all the features in the claim should contribute to the
solution, and the problem must be one that the skilled person in the
particular technical field might be asked to solve at the priority
date.
3. The technical field is computer engineering, and database
querying in
particular. The closest prior art, and the only prior art presently
available, are the activities of the travel agent requesting seat
availability from an availability system as described in the
background
section of the application. Starting out from this prior art, the
appellant argued that the feature of “predicting” seat
availability
solved the problem of relieving processing load on the availability
system.
4. Predicting seats in this general sense may cover nontechnical
methods and activities, such as circumventing the problem
altogether by avoiding queries to certain airlines at certain times
based on the travel agent’s previous experience of that airline
(cf. [node:45,title=“T 258/03”], OJ 2004, 575, Headnote II).
However, method claim 1 (and apparatus claim 19) presently on file
limits the invention to a technical aspect, namely having a travel
planning system server submitting the queries to the availability
system as well as storing the responses and performing the
prediction of availability.
5. In the Board’s view, the result of the prediction being
performed
in a server is that it is now distinguished from any manual
activity of the travel agent, such as remembering previous search
results. Thus, the Board considers that the solution can no
longer be the mere implementation of a known business activity,
but involves technical considerations, such as providing the
travel planning system server and using it to implement the
prediction rather than the travel agent client. The Board
therefore judges that the solution in the amended claims is no
longer obvious from this point of view.
6. The examining division argued that the solution was obvious in
view
of the well-known use of local caching servers relieving main
servers from processing load, but gave no detailed arguments
provided, nor any evidence of this. The appellant has disputed
that the solution is common knowledge. Regardless of whether the
presently claimed prediction is distinguished from the caching
operation, the Board judges that the distinguishing features at
least go beyond what is “notorious”, or essentially
irrefutable, in this art. In the Board’s view this removes the
basis for not performing a search under Rule 45 EPC, so that an
additional search should be performed (cf.
[node:47:title=“T 690/06”], points 2 and 8) to establish the
relevant prior art by which to judge the inventive step. Thus
both search and examination work need to be carried out, which
is the task of the examining division, and accordingly the Board
remits the case for further prosecution on the basis of
independent claims 1 and 19, submitted during the oral proceedings.
Order:
For these reasons it is decided that:
- The decision under appeal is set aside.
- The case is remitted to the department of first instance for
further prosecution on the basis of the main request submitted
during the oral proceedings before the Board.
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